RE IFTIKHAR ALI

CAMP 249/2019

[2021] HKCA 1215

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 249 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 932/2017)

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J U D G M E N T

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Hon Barma JA (giving the Judgment of the Court):

1.  On 23 March 2021, this court (Lam VP and Barma JA) handed down a judgment dismissing the applicant’s application for extension of time to appeal against the decision of Campbell-Moffat J (“the judge”) on 29 November 2018 refusing leave to the applicant to apply for judicial review. The applicant had sought to review the decision of the Torture Claims Appeal Board (“the Board”) dismissing his appeal from the decisions of the Director of Immigration rejecting his non‑refoulement claim.

2.  The facts and issues in the application, as well as the court’s reasons for dismissing it, are set out in our judgment.[1] We will not repeat them here.

3.  The applicant subsequently applied, by a Notice of Motion filed on 9 April 2021, for leave to appeal to the Court of Final Appeal.  The applicant stated in the Notice of Motion that:

“1. I was deprived of the right to make full grounds for appeal. By not having the Determination translated or read back to me, I could not have understood the Determination to the fullest and is unfair to me. I had to submit everything in English because the Court would not accept grounds written in my own language, otherwise I would have done that.

2. Instead, I had to ask for help without having the ability to verify if everything is correct and true. The fact that oral hearings and hearings were arranged with interpreters mean that the Court recognizes the significance of language assistance, and therefore such assistance should extend to understanding the judgment. This is contrary to the high standard of fairness required by law if this results in a deprivation of the right of a litigant to seek further avenues of appeal.

3. Prospect of success should not be determined by the Judges at this stage as I have been deprived of making a full appeal and to put forward my grounds fairly without the help of language assistance. It is not the Judges’ power to determine what I am putting in as grounds and what I am not, and therefore administratively speaking the Judges could not have possibly made a finding on prospect of success based on this ground.

4. I seek reconsideration of my case.”

4.  The applicant lodged a written submission in support of the application on 22 April 2021.  In the written submission, the applicant reiterated the matters raised in the Notice of Motion.  He also contended that the “Judges have been presumptuous about [his] situation” and it was procedurally unfair.

5.  Having considered the applicant’s Notice of Motion and written submission, we see no reason to depart from the usual practice of determining an application of this kind on the papers.  We have, therefore, determined the applicant’s application on the basis of the documents filed.

6.  The matters stated by the applicant do not constitute grounds for granting leave to appeal to the Court of Final Appeal.  The applicant has failed to identify any question of great general or public importance for the Court of Final Appeal to determine, as required by section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484.  Nor is any such question apparent to us from the matters he has raised. 

7.  As we have held in [20] of our judgment, we do not accept that the applicant had any genuine difficulty in understanding the CALL-1 Form.  We likewise do not accept that the applicant had any genuine difficulty in understanding our judgment, as he was able to identify errors in the judgment and make submissions on them. This ground is therefore in our view not reasonably arguable before the Court of Final Appeal.

8.  As for the rest of the grounds raised in the Notice of Motion and written submission, none of them was unsupported by legal authority.  They also do not engage the reasoning of our judgment.  The court must necessarily consider prospects of success when considering whether or not to grant an extension of time to appeal and it cannot be a basis for further appeal that this was done.  These grounds do not appear to us be reasonably arguable before the Court of Final Appeal.

9.  We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

10.  For these reasons, the Notice of Motion dated 9 April 2021 is dismissed.